Grand Jury Proceedings, In re

• Decision Date: 19 July 1982
• Citation: 89 A.D.2d 605,452 N.Y.S.2d 643
• Parties: In re GRAND JURY PROCEEDINGS. The PEOPLE, etc., Respondent, v. John DOE, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 643

452 N.Y.S.2d 643

89 A.D.2d 605

In re GRAND JURY PROCEEDINGS The PEOPLE, etc., Respondent, v. John DOE, et al., Appellants.

Supreme Court, Appellate Division Second Department.

July 19, 1982.

Robert Polstein, New York City (Layton & Sherman, Daniel J. Brooks, New York City, of counsel), for appellants.

Robert Abrams, Atty. Gen., New York City (John Michael Ryan and William F. Dowling, New York City, of counsel), for respondent.

Before MOLLEN, P. J., and DAMIANI, TITONE and MANGANO, JJ.

MEMORANDUM BY THE COURT.

Appeal from an order of the County Court, Suffolk County, entered February 24, 1982, which denied appellants' motion either to quash eight Grand Jury subpoenas duces tecum or, in the alternative, to hold an evidentiary hearing as to whether those subpoenas were tainted by a claimed illegal search and seizure.

Order affirmed, without costs or disbursements.

Seven corporations and one partnership concededly interrelated through common ownership, have moved, inter alia, to quash eight subpoenas duces tecum issued by a Suffolk County Grand Jury. The Grand Jury probe concerns possible tax and other offenses. The subpoenaed entities are to produce various financial documents for the period of January 1, 1978 to December 1, 1981.

The appellants' primary contention is that each subpoena is founded upon records which allegedly had been seized in violation of the Fourth Amendment during a prior investigation. These records were subsequently reviewed during a civil tax audit, which is claimed to have resulted in the present Grand Jury probe.

We see no need to consider the Fourth Amendment claims as it is established beyond peradventure that the exclusionary rule is not applicable to Grand Jury proceedings. (United States v. Calandra, 414 U.S. 338, 351, 94 S.Ct. 613, 621, 38 L.Ed.2d 561; People v. McGrath, 46 N.Y.2d 12, 22, 412 N.Y.S.2d 801, 385 N.E.2d 541.) The search and seizure questions presented are matters to be resolved at a suppression hearing if an indictment is returned against any of the appellants. (See United States v. Calandra, supra; Matter of Search Warrant No. L-18/81, 108 Misc.2d 440, 445, 437 N.Y.S.2d 635.)

Nor do we perceive any violation of the secrecy requirements of the Tax Law which requires quashing the subpoenas. Assuming, arguendo, that the secrecy requirements imposed upon the Department of Taxation and Finance apply to gasoline taxes, the department may turn over information to the Attorney-General for investigation and possible prosecution of tax offenses. (Tax Law, §§ 202, 1146; Executive Law, § 63, subd. 3; see, also, People v. Lyon, 82 A.D.2d 516, 517, 442 N.Y.S.2d 538.)

The partnership appellant, in which the partners are husband and wife, asserts that the records sought are personal and that production of the documents would violate the individuals' Fifth Amendment privileges. (See Bellis v. United States, 417 U.S. 85, 101, 94 S.Ct. 2179, 2189, 40 L.Ed.2d 678; United States v. Slutsky, 352 F.Supp. 1105.) We adhere to the view that the familial relationship of the members of a partnership is not dispositive but, rather, a factor in the determination that the records sought are personal. (See United States v. Alderson, 9th Cir., 646 F.2d 421; Matter of Witness Before Grand Jury, 9th Cir., 546 F.2d 825, 827; United States v. Kuta, 7th Cir., 518 F.2d 947, cert. den. 423 U.S. 1014, 96 S.Ct. 446, 46 L.Ed.2d 385; Matter of September 1975 Special Grand Jury, 435 F.Supp. 538; People v. Lynch, 83 Ill.App.3d 479, 39 Ill.Dec. 223, 404 N.E.2d 814.) It is not enough for the movant to simply declare the documents are personal in nature to obtain the protection of the Fifth Amendment. (Matter of September 1975 Special Grand Jury, supra, p. 544; United States v. Quick, 336 F.Supp. 744, 745.) The partnership has solely pointed out that the partners are a husband and wife. Without more, this court is...